Berlin | Freiburg | Göttingen, March 13, 2023
In a decision dated February 1, 2023 (Case No.: 1 BvR 1336/20), which has now been made public, the Federal Constitutional Court declined to accept for review the constitutional complaints of five individuals affected by the ban on linksunten.indymedia.org. The complainants had filed a constitutional complaint with the Federal Constitutional Court against the judgment of the Federal Administrative Court of January 29, 2020 (https://www.bverwg.de/de/290120U6A1.19.0), alleging violations of several fundamental rights, in particular the freedom of expression and of the press under Article 5 Paragraph 1 of the Basic Law, as well as the right to legal recourse guaranteed by Article 19 Paragraph 4 of the Basic Law. The Federal Administrative Court had rejected the lawsuits on the grounds that the complainants were not allowed to take action against the ban in their own name, since only the "association" linksunten.indymedia.org was allowed to take legal action against the ban.
Simultaneously with the ban on the news platform, which had been declared an association by the Federal Ministry of the Interior (BMI), the Karlsruhe public prosecutor's office initiated an investigation against the alleged operators of the platform on suspicion of forming a criminal organization under Section 129 of the German Criminal Code.
The complainants filed suit in their own name, as a suit as an association would have required a resolution from the alleged association and confirmation from the complainants that the association actually exists under association law. The complainants consistently disputed this and argued that the measures taken in the prohibition proceedings (the prohibition itself, searches, seizures, etc.) should not have been based on the Associations Act.
The Federal Constitutional Court declined to accept the constitutional complaints for a decision, reasoning that the complainants had not filed suit as an association. While a joint suit would have raised concerns about self-incrimination in the criminal proceedings, such a statement, whether through the joint suit itself or through an admission of membership in the association, would not be fully admissible in the criminal proceedings.
Linksunten.indymedia.org was a news and communication portal, protected by the constitutional right to freedom of the press. The ban was justified solely on the grounds of its media content. The affected parties continue to believe that the claim by the Federal Ministry of the Interior (BMI) and the Federal Administrative Court that the ban was primarily intended to target the association of individuals behind it, rather than the internet platform itself, is a pretext. "The BMI's real goal was and remains the shutdown of the platform, which was a thorn in its side. The Associations Act was an unlawfully applied means to an end – the Telemedia Act should have been applied, allowing for a comprehensive review of fundamental rights," explains attorney Angela Furmaniak, one of the legal representatives.
“At least the decision strengthens the rights of the accused by introducing a prohibition on the use of evidence provided by defendants in administrative proceedings,” adds lawyer Dr. Lukas Theune, commenting on the Federal Constitutional Court’s decision.
The fact that a substantive review of fundamental rights is still being omitted is nevertheless a loss for the protection of press freedom. The Federal Administrative Court's reasoning was and remains highly problematic for other internet portals and publications as well. "If the authority imposing the ban can choose the legal basis on which it takes action against objectionable media content, press freedom is undermined. We continue to consider it contrary to the rule of law not to allow individual legal protection in this case and to make such protection available through administrative court proceedings only under the condition of self-incrimination," said attorney Sven Adam.
For further questions, the listed lawyers can be contacted using the contact details provided.
Angela Furmaniak: 07621 425195, furmaniak@rechtsanwaeltinnen-loerrach.de
Dr. Lukas Theune: 030 23564436, theune@akm-berlin.de
Sven Adam: 0551 4883169, kontakt@anwaltskanzlei-adam.de
